You are here: / Question of Fact Raised About Whether Signature on Promissory Note Was...

Search Results

/

Question of Fact Raised About Whether Signature on Promissory Note Was Forged

In this action on a promissory note, the Second Department reversed Supreme Court, finding that defendant raised a triable issue of fact whether his signature was forged. The court noted that expert evidence is not necessary to raise a question of fact in this context:

Something more than a mere assertion of forgery is required to create an issue of fact contesting the authenticity of a signature … . Here, in addition to his own affidavit, the defendant submitted a copy of his driver license as an example of his signature, and an affidavit from the individual who allegedly witnessed execution of the note. Review of the defendant’s signature on his driver license and the signature on the note reveal some difference to the untrained eye. More importantly, the individual who is identified as the witness on the note stated in his affidavit that he had no recollection of witnessing the defendant signing the note, and that he believed that his own signature thereon was forged. Furthermore, while the defendant did not submit an expert affidavit, an expert opinion is not required to raise a triable issue of fact regarding a forgery allegation … . Finally, the defendant’s signature on the note was not notarized, and thus, there is no presumption of due execution … . Kitovas v Megaris, 2015 NY Slip Op 08388,2nd Dept 11-18-15

 

/

Tracked In Water, Failure to Demonstrate When Area Last Inspected Precluded Summary Judgment

The Second Department, reversing Supreme Court, determined defendant’s failure to demonstrate when the area where the slip and fall occurred was last inspected precluded summary judgment in defendant’s favor. Evidence of general cleaning procedures is not enough to demonstrate a lack of constructive notice of an alleged dangerous condition (tracked in water here):

While a “defendant [is] not required to cover all of its floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain” … , a defendant may be held liable for an injury proximately caused by a dangerous condition created by water tracked into a building if it either created the hazardous condition, or had actual or constructive notice of the condition and a reasonable time to undertake remedial action … .

To meet its burden on the issue of lack of constructive notice, a defendant is required to offer some evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s fall … .

Here, the defendant failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition. Neither the affidavit of the defendant’s operations manager, nor the deposition testimony of the defendant’s asset protection manager established when the area where the plaintiff fell, or any of the entrances to the store, were last inspected in relation to the plaintiff’s fall.  Milorava v Lord & Taylor Holdings, LLC, 2015 NY Slip Op 08390, 2nd Dept 11-18-15

 

/

Question of Fact Whether Hospital Had a Duty to Safeguard Plaintiff from Actions by Third Parties

The Second Department determined there was a question of fact about whether defendant hospital (“Winthrop defendants”) had a duty to safeguard plaintiff-patient from harm caused by the emergency medical technicians (EMT’s) who transported plaintiff to the hospital. Plaintiff was brought to the hospital by ambulance for dialysis. The EMT’s placed plaintiff on a scale and left. Plaintiff fell when he was on the scale:

A hospital has a duty to safeguard the welfare of its patients, even from harm inflicted by third persons, measured by the capacity of the patient to provide for his or her own safety” … . “This sliding scale of duty is limited, however; it does not render a hospital an insurer of patient safety or require it to keep each patient under constant surveillance. As with any liability in tort, the scope of a hospital’s duty is circumscribed by those risks which are reasonably foreseeable” … .

Here, the Winthrop defendants failed to establish, prima facie, that they did not breach a duty owed to the decedent. The decedent was transported to the Winthrop defendants’ facility for dialysis treatment, and a witness for the Winthrop defendants testified at his deposition that the weighing of the decedent, on the Winthrop defendants’ premises, was a critical component of that treatment. It was reasonably foreseeable that a patient suffering from end-stage renal disease, who was transported to the Winthrop defendants’ facility by ambulance and in a stretcher, could fall while being weighed-in at the dialysis unit, if not properly supervised. Thus, the decedent’s injury was reasonably foreseeable to the Winthrop defendants.

In support of their motion, the Winthrop defendants submitted deposition testimony indicating that it was customary practice for EMTs of transportation companies to be responsible for weighing patients brought to the dialysis unit on a stretcher prior to transferring care of the patient to the Winthrop defendants’ dialysis nurses. However, they did not present any evidence that there was any written policy or agreement to that effect. Under these circumstances, the deposition testimony submitted by the Winthrop defendants failed to establish, prima facie, that they did not owe a duty to the decedent. Patel v American Med. Response, Inc., 2015 NY Slip Op 08395, 2nd Dept 11-18-15

 

/ , ,

County Did Not Demonstrate Its Entitlement to Qualified Immunity Re: Obstructed Intersection

The Second Department determined the county did not demonstrate (as a matter of law) it was entitled to qualified immunity for  the placement of a sensor station and the failure to trim the nearby hedges. The complaint alleged the sensor station and hedges obstructed plaintiff’s view of oncoming traffic, resulting in an accident. The county’s motion for summary judgment was properly denied. The court explained the analytical criteria:

A governmental body owes a nondelegable duty to keep its streets in a reasonably safe condition … . However, a governmental body is accorded a qualified immunity from liability arising out of a highway safety planning decision … . Such immunity is predicated upon an ability to demonstrate that the relevant discretionary determination by the governmental body was the result of a deliberative decision-making process … .

Contrary to the County’s contention, it did not sustain its prima facie burden on the issue of qualified immunity. The County failed to demonstrate, inter alia, that its placement of the sensor station cabinet and its decision to refrain from trimming the hedge were highway safety planning decisions resulting from a deliberative decision-making process of the type afforded immunity from judicial interference … . Iacone v Passanisi, 2015 NY Slip Op 08386, 2nd Dept 11-18-15

 

/

Height Differential Open and Obvious

The Second Department, reversing Supreme Court, determined the condition which caused plaintiff to fall was open and obvious (nonactionable). Plaintiff tripped where there was a height differential between a bed of decorative stones and the abutting walkway:

Here, the evidence submitted by the defendant in support of its motion, including photographs of the accident site, demonstrated, prima facie, that it was entitled to judgment as a matter of law. Contrary to the plaintiff’s contention, the height differential between the cement walkway and the abutting bed of stones was open and obvious and not inherently dangerous … . Mucciariello v A & D Hylan Blvd. Assoc., LLC, 2015 NY Slip Op 08391, 2nd Dept 11-18-15

 

/

Single Step Was Open and Obvious

The Second Department, reversing Supreme Court, determined defendant was entitled to summary judgment in a slip and fall case because the alleged defective condition, a single step riser, was open and obvious and complied with building code requirements:

The defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence which demonstrated that the subject step complied with the relevant Building Code requirements and that it was open and obvious and not inherently dangerous … . The burden then shifted to the plaintiff to defeat the defendants’ motion with “proof demonstrating the existence of an issue of fact as to whether other circumstances prevailed which could lead the trier of fact to conclude that a dangerous condition existed which was a substantial cause of the [accident] resulting in the plaintiff[‘s] . . . injury” … . Contrary to the Supreme Court’s determination, the plaintiff failed to raise a triable issue of fact. Fishelson v Kramer Props., LLC, 2015 NY Slip Op 08380, 2nd Dept 11-18-15

 

/ ,

Defendant’s Statement Was Circumstantial Evidence of the Taking Element of Grand Larceny Because an Innocent Inference from the Statement Was Possible; Video Surveillance Was Direct Evidence of the Taking Element Despite Defendant’s “Innocent” Explanation of His Actions

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined video surveillance showing defendant first hiding and then rifling through the victim's purse was direct, not circumstantial, evidence of the taking element of grand larceny (despite the defendant's non-criminal explanation of his actions). The court also determined the defendant's statement “I don't have it, but I can get it” (made when asked about the purse) was circumstantial evidence of the taking element because an innocent explanation for having the purse could be inferred from the statement. Because both direct and circumstantial evidence of grand larceny was presented, the circumstantial-evidence jury instruction was not required:

It is well settled that a trial court must grant a defendant's request for a circumstantial evidence charge when the proof of the defendant's guilt rests solely on circumstantial evidence … . By contrast, where there is both direct and circumstantial evidence of the defendant's guilt, such a charge need not be given … .

We agree with defendant that his statement to the prosecution witness that he did not have the purse but could get it was not direct evidence of his guilt. A defendant's statement is direct evidence only “if it constitutes 'a relevant admission of guilt' ” … . * * *

Here, defendant's statement — that he did not have the purse but could get it — was not a direct admission of his guilt of larceny. Rather, defendant's statement was also consistent with an inference that although he did not steal the purse, he knew where the purse was located and thought he could obtain it. Inasmuch as his statement merely included inculpatory facts from which the jury may or may not have inferred guilt, his statement was circumstantial rather than direct evidence … .

We agree with the People, however, that the surveillance video constituted direct evidence of defendant's guilt of larceny. The “taking” element of larceny “is satisfied by a showing that the thief exercised dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner's continued rights” … . People v Hardy, 2015 NY Slip Op 08369, CtApp 11-18-15


/ ,

Question of Fact Whether City Created Hazardous Condition

The Second Department, reversing Supreme Court, determined there was a question of fact whether the city created the allegedly hazardous condition (an expansion joint cover plate on a bridge which was struck by plaintiff’s bicycle):

Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case and is a question of fact for the jury … . In addition, “[a] municipality that has adopted a prior written notice law’ cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies” … . The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality … .

Here, the City failed to establish, prima facie, that the subject metal expansion joint cover plate did not present a hazardous or defective condition … . Although the plaintiff does not dispute that the City did not have prior written notice of the alleged hazardous or defective condition, a triable issue of fact exists as to whether the City created the alleged hazardous or defective condition … . Oser v City of New York, 2015 NY Slip Op 08393, 2nd Dept 11-18-15

 

/ ,

Courts Have the Power to Exclude Evidence Admitted by Stipulation; Trial Judge’s Refusal to Exclude the Evidence, Under the Facts, Was Not an Abuse of Discretion

In a conspiracy prosecution arising from a scheme to defraud mortgage lenders, the Court of Appeals determined the trial judge properly refused to exclude documentary evidence, and testimony concerning the evidence, which, although inadmissible, was admitted by stipulation and was not objected to until the day after the testimony. The court noted that the trial judge, in the exercise of discretion, had the power to exclude the evidence, despite the stipulation.  But because the admitted evidence did not raise a constitutional (confrontation) issue, was not highly prejudicial, and was not the subject of a timely objection, the trial judge did not abuse his discretion in this case:

Although courts are ordinarily bound to enforce party stipulations … , where a party has in the interests of judicial economy stipulated to the admission of voluminous materials and there are among them scattered items, both prejudicial and ordinarily inadmissible that may reasonably have escaped counsel’s attention, there is no rule preventing an exercise of judicial discretion to relieve the party, at least in part, from the stipulation, particularly where doing so would not significantly prejudice the other side. The trial court here did not take a contrary view in declining to redact the record as defendant requested. It ruled as it did not because it understood the parties’ stipulation categorically to preclude relief of the sort sought, but because significant unobjected-to testimony had already been received … . While the court might have exercised its discretion differently, its decision not to revisit the issue of the notation’s admissibility, cannot under the circumstances be characterized as an abuse of discretion, as would be necessary for it to qualify as a predicate for relief in this Court … . Although the stipulation was not irreversibly binding, it was at least presumptively enforceable and defendant offered no plausible excuse for failing earlier to seek an exception from its coverage. Assuming that the disputed notation might have reasonably escaped notice before trial — and that is at best questionable — it was prominently referenced in [the related] testimony, but even then elicited no contemporaneous protest.

This moreover was not a situation in which the receipt of an extrajudicial statement resulted in a denial of the constitutional right of confrontation. The notation was not testimonial hearsay … ; at worst its admission ran counter to evidentiary rules of nonconstitutional provenance and was, in light of other evidence in the case received without even belated objection, practically redundant. Indeed, a different exercise of discretion by the trial court to exclude the note and redact record references to it, would not have materially altered the evidentiary equation. People v Gary, 2015 NY Slip Op 08368, CtApp 11-18-15

 

/

Plaintiff Did Not Know Cause of Fall

The Second Department determined summary judgment was properly granted to defendant in a slip and fall case. Plaintiff apparently tripped on a rug. After the fall plaintiff noticed a part of the rug which was bent upwards. However there was no evidence thr rug was in that condition before the fall, forcing resort to speculation about the cause of the fall:

“In a slip [or trip] and fall case, a defendant moving for summary judgment has the initial burden of establishing, prima facie, that it neither created the dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” … . However, “[a] plaintiff’s inability to identify what had caused him or her to fall is fatal to his or her case, and a defendant moving for summary judgment dismissing the complaint can meet its initial burden as the movant simply by demonstrating that the plaintiff did not know what had caused him or her to fall” … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law by submitting the transcript of the plaintiff’s deposition, during which she testified that she did not notice the subject rug at any time prior to her fall, and that it was only after she fell that she observed a part of the rug to be in a folded condition … . The defendant also submitted the deposition testimony and an affidavit from the employee the plaintiff was following when she fell. The employee stated that she did not see any condition with respect to the subject rug which would cause anyone to trip. The defendant also submitted surveillance footage from the day of the plaintiff’s fall depicting the rug, which does not show that the rug was in a defective condition prior to the plaintiff falling. Without proof that there was a defective condition present with respect to the subject rug when the plaintiff fell, and the possibility that the folded condition of the rug the plaintiff observed after she fell was caused by her tripping, a jury would be required to impermissibly speculate as to the cause of her fall… . Giannotti v Hudson Val. Fed. Credit Union, 2015 NY Slip Op 08383, 2nd Dept 11-18-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy